Germany: The protection of business secrets does not rule out the right of the press to be informed by government estate agencies

Tobias Raab

On 25 March 2015 the Federal Administrative Court of Germany in Leipzig ruled that representatives of the press can demand information about facts that protect business secrets from government agencies, if their right to be informed outweighs the interest of business secret protection.

The Federal Republic of Germany and the summoned Land of Berlin each owned parts of the Tempelhof airport. After the airport was closed, they signed a lease under private law with the BREAD & butter GmbH & Co. KG, which was also summoned.

Subject matter of the lease contract were parts of the airport area, where the BREAD & butter GmbH & Co. KG had planned to carry out two four-week fashion fairs per year. The plaintiff, who is a journalist, demanded to be informed about the rental tariff and other parts of the contract by the defendant, the German Federal Institute for Real Estate. After the defendant refused to give him the requested information, the journalist took legal action. In the appellate procedure, the Higher Administrative Court in Münster ruled that the defendant had to inform the plaintiff.

The Federal Administrative Court of Germany dismissed the defendant's appeal. It recognise that the Berlin’s press law would have been applicable to the plaintiff’s demand, but the rights of press to information concerning real estate pieces of the Federal Republic result from federal law. Therefore, the Higher Administrative Court’s judgment was right. As the federal legislation has yet to release a law about press disclosure duties, representatives of the press are entitled to demand information on the basis of the German Fundamental Law if no justified reason of the state or of private individuals exists. In this concrete case, the confidentiality did not outweigh the plaintiff’s right to be informed. Only the rental tariff and other parts of the contract could give the journalist a chance to review the lease's economic efficiency. This is even more important as some circumstances of the contract conclusion caused immense public doubts about the efficiency in matter. The public interest in being informed and the right of the press to publish the requested information outweighed the protection of business secrets.

Tobias Raab works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken.

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The press release of the Federal Administrative Court of Germany is available in German here

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